Devine Millimet | NH Law Firm

Can I Evict My Tenant During the COVID-19 State of Emergency?

Angela B. Martin, Esq.
David M. Howard, Esq.
Seamus S. Ovitt, Esq.

April 23, 2020

The short answer is, it depends.  On March 13, 2020, New Hampshire’s Governor issued Executive Order 2020-04 declaring a State of Emergency in connection with the spread of Coronavirus (COVID-19).  The Governor subsequently issued Emergency Order #4, entitled “Temporary prohibition on evictions and foreclosures” on March 17, 2020. Emergency Order #4 generally prohibits landlords, both residential and commercial, from initiating eviction proceedings during the current State of Emergency[1]. The penalties for acting in contravention of the Order can be severe under RSA 540-A, and applicable common law.  

On April 3, 2020, Governor Sununu issued Emergency Order #24 followed by additional guidance from Attorney General Gordon McDonald.  These additional proclamations clarified that the stay on eviction proceedings shall not apply to evictions resulting from a tenant substantially damaging property or any violation of a lease which has a substantial adverse impact on the health or safety of the other persons residing on the premises or instances where a tenant has abandoned the rental unit.   In addition, it clarified that tenants were not entitled to free rent during this time and that the entire amount of rent will become due once the State of Emergency is lifted.  Likewise, landlords were reminded that they are not entitled to stop making mortgage payments (though the overlap of the CARES Act will be discussed below). 

Following the Governor’s declared State of Emergency, the New Hampshire Judicial Branch took steps in response to the pandemic. As of March 27, 2020, the New Hampshire circuit courts remain open on a restricted basis. With the exception of emergency proceedings under RSA 540-A, all eviction hearings in the circuit courts remain postponed until May 4, 2020[2] and/or the date the State of Emergency declaration is lifted.  Likewise, foreclosure proceedings pending in New Hampshire superior courts are postponed until May 4, 2020 and/or the date the State of Emergency declaration is lifted.

If I Don’t Pay My Mortgage Will the Bank Foreclose on My Loan?

The CARES Act was signed into law on March 27, 2020 (the “Act”) and includes a number of provisions that affect property owners with federally backed mortgage loans as well as their tenants. Under Section 4022 of the Act, a borrower with a “federally backed mortgage loan” experiencing a financial hardship due, directly or indirectly, to the COVID-19 national emergency may request forbearance by: (1) submitting an oral or written request to the borrower’s loan servicer; and (2) affirming that the borrower is experiencing a financial hardship due to the COVID-19 national emergency.

Servicers must grant the requested forbearance upon request. The initial forbearance period runs for up to 180 days; however, borrowers may request a 180 day extension of the forbearance period during the initial 180 day period. During the forbearance period no fees, penalties, or interest beyond that which is scheduled (or calculated as if the borrower made all contractual payments on time and in full) shall accrue.  In addition, Section 4022(c)(2) of the Act further imposes upon servicers of federally backed mortgage loans a 60 day moratorium on foreclosures, except with respect to vacant or abandoned properties. Servicers may not: (1) initiate any judicial or non-judicial foreclosure proceedings; (2) move for a foreclosure judgment or order for sale; or (3) execute a foreclosure-related eviction or foreclosure sale.

In determining whether a borrower has a federally backed mortgage loan, it is important to use the following definition:  any loan secured by a first or subordinate lien on residential real property designed principally for the occupancy of 1-4 families that is (i) insured by the Federal Housing Administration under Title II of the National Housing Act; (ii) insured under Section 255 of the National Housing Act; (iii) guaranteed under Section 184 or 184A of the Housing and Community Development Act of 1992; (iv) guaranteed or insured by the Department of Veteran Affairs; (v) guaranteed or insured by the Department of Agriculture; (vi) made by the Department of Agriculture; or (vii) purchased or securitized by the Federal Home Loan Mortgage Corporation (“Freddie Mac”) or the Federal National Mortgage Association (“Fannie Mae”).

A borrower owning a property having 5 or more units with a “federally backed mortgage loan” that is experiencing financial hardship due to the COVID-19 emergency, and that was current on its payments as of February 1, 2020, may request a forbearance on the federally-backed mortgage loan by: (1) submitting an oral or written request to the borrower’s loan servicer; and (2) affirming that the borrower is experiencing a financial hardship due to the COVID-19 emergency.  Upon receipt of an oral or written request, a servicer shall document the financial hardship, provide the requested forbearance for up to 30 days, and extend the forbearance for up to two (2) additional 30 day periods upon request of the borrower, provided that the borrower’s extension request is made (i) during the period commencing March 27, 2020 and ending when the national emergency is lifted or December 31, 2020 (whichever is earlier) and (ii) at least 15 days before the end of the initial forbearance period.  Under this provision, a “federally backed mortgage loan” is any loan, other than temporary financing (e.g., a construction loan) that (i) is secured by a first or subordinate lien on residential multi-family real property designed principally for the occupancy of five (5) or more families; and (ii) is made, in whole or in part, or insured, guaranteed, supplemented or assisted in any way by an officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development (“HUD”), or is purchased or securitized by Freddie Mac or Fannie Mae.

Multi-family borrowers who receive forbearance cannot, for the duration of the forbearance:

  • Evict or initiate eviction proceedings against tenants for nonpayment of rent or other fees or charges, or charge late fees, penalties or other charges to tenants for late payment of rent; or
  • Require tenants to vacate the property until 30 days after the landlord has provided the tenant with notice to vacate; such notice may not be issued by the landlord until after the forbearance period has expired.

In summary, this is a time to ensure that, as a landlord and as a borrower, you remain diligent and informed about the various – and changing – law, rules and regulations that apply to your particular situation.  

[1] Note that under the CARES Act the moratorium is for a period of 120 days from March 27, 2020.  

[2] The date of May 4, 2020 should be monitored as it could change as the COVID-19 situation continues to evolve. 

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